Best, R (On the Application Of) v The Secretary of State for Justice (Rev 1)  EWCA Civ 17 (21 January 2015)
We are pleased to welcome again Mr Anis Waiz, solicitor and head of commercial litigation at Curtis Law Solicitors, as he continues his critical review of current case law.
Many readers will be familiar with this important case from the reported summary in June 2014 (“the June Case Summary”).
This is a very interesting case not only to property lawyers but to general practitioners. At the heart of this case lay a tension between the criminal and civil law.
The reader is referred to the key background facts set out in the June Case Summary. At first instance the court held that section 144(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPOA”) which criminalised certain acts of trespass did not have the effect of depriving a trespasser of registered land from acquitting title to the land.
It was held that conduct which contravened section 144 could still be relied upon to establish a period of adverse possession of a property so as to acquire title to it. The Chief Land Registrar appealed that decision to the Court of Appeal.
In broad terms the issue on the appeal was whether an application for a person to be registered under the Land Registration Act 2002 (“LRA”) as the proprietor of a registered estate in land by reason of a period of adverse possession was valid, where part of the relevant period of possession consisted of the occupation of a residential building in circumstances constituting a criminal offence under section 144.
Public Interest v Unlawful actions
Before the Court of Appeal there was detailed submissions by the parties as to the key issues of public interest v unlawful conduct.
- Counsel for Mr Best, submitted the wider idea that a person should not benefit from his own wrong had not prevented the law of adverse possession from operating. Adverse possession was indeed founded on the tort of trespass to land. The public interest in having land put to good use and having clear rules to govern acquisition of title to land which has been abandoned had been taken to override the general concern that a person should not benefit from their unlawful actions.
- That balance of public interest has been expressed in statutory form by the law of limitation in relation to unregistered land and since 1925, the same balance of public interest has been expressed by similar provision allowing for title to registered land to be acquired by adverse possession.
- Counsel for the Registrar submitted the intervention of the criminal law in this area makes a critical difference to the balance of competing public interests. The public interest in ensuring that a person does not benefit from a crime committed by him is especially strong. It has also received statutory reinforcement (see the Proceeds of Crime Act 2002) under which a court can make an order to deprive a person of property which they have acquired as a result of crime.
- Thus it was submitted that the enactment of section 144 has had a major impact on the law of adverse possession. Where, in the course of a period of adverse possession sought to be relied on in relation to a residential property, the acts of adverse possession include acts which would constitute an offence under section 144 (i.e. knowingly being in the property as a trespasser for the purposes of living in it), such acts cannot qualify as adverse possession allowing title to the property to be acquired by the trespasser-offender.
The Court of Appeal noted the following material issues:
- Section 144 created a criminal offence of trespassing in certain circumstances in relation to a residential building. It was brought into effect on 1 September 2012.
- Thus it criminalised conduct (trespassing on land) in certain circumstances, which previously had merely been unlawful as a tort.
- Prior to section 144, it was long established that title to land could be acquired by a trespasser by a long period of adverse possession. In unregistered land for example the law of limitation as applied in relation to the tort committed by the trespasser taking possession of the land. Thus section 15 of the Limitation Act 1980, provides for a limitation period of twelve years. Section 17 provides that at the expiration of this period, the title of a person with a claim to the land “shall be extinguished.”
- In registered land a person who can show that he has been in adverse possession of land for the relevant period can apply to be registered as the proprietor of that land, with full legal title. Paragraph 1(1) of Schedule 6 to the LRA provides that a person may apply to be registered as the proprietor of a registered estate in land “if he has been in adverse possession of the estate for the period of ten years ending on the date of the application.”
- The Chief Land Registrar’s position was that section 144 prevented Mr Best from acquiring title to the property as otherwise a trespasser could improperly gain a benefit from his criminal conduct. The Registrar had rejected Mr Best’s application to be registered on the basis that it was not possible to rely on an act which is itself a criminal offence as evidence of adverse possession by reference to R (Smith) v Land Registry  EWHC 328 (Admin). The reader will note the issue of ex turpi causa, (no action may be founded on an illegal or immoral conduct) was dealt with at first instance and is set out in the June Case Summary.
- Rule 16(3) of the Land Registration Rules 2003 provides that if an application to be registered as a proprietor of land appears to the Registrar “to be substantially defective” he may reject it on delivery or cancel it at any time thereafter. Here The Registrar contended that under this rule he had rejected Mr Best’s application for registration, since it was “substantially defective”, because it revealed that Mr Best was relying on conduct in contravention of section 144 as part of his claim to acquire title by adverse possession.
- The Court of Appeal observed that section 144 was introduced as the result of public concern regarding the difficulty for landowners, in particular the owners of residential property, in securing the assistance of the police to remove squatters who are occupying their property. There was no indication by the Government in either of its consultation papers that there was any intention that the new provision should affect the careful provisions of the LRA in respect of acquisition of title by adverse possession.
- The best guidance on the relevant analytical framework for present purposes was in the speech of Lord Wilson JSC in Hounga v Allen  UKSC 47. In that case, an employee from Nigeria in breach of immigration control, came to take up employment illegally, was dismissed by the employer. The employee sought a claim for unlawful race discrimination. Her claim succeeded in the employment tribunal, but the Court of Appeal set its order aside, holding that the illegality of the contract of employment formed a material part of the claimant’s complaint and that to uphold it would be to condone the illegality. The Supreme Court allowed the employee’s appeal. The law of illegality did not operate to confer a broad discretion on a court to take any illegal actions on the part of a claimant into account when deciding the extent to which such illegality has an impact upon the relief sought. Rather, the task for the court was to identify in the specific context in question a particular rule which reflects in an appropriate way the relevant underlying policy in that area.
- The issue in Hounga was, in what circumstances should the defence of illegality defeat a complaint by an employee that an employer has discriminated against him by dismissing him? Lord Wilson said noted that the defence of illegality rested on the foundation of public policy. Therefore two questions arose. What was the aspect of public policy which founds the defence? And, is there another aspect of public policy to which application of the defence would run counter? Lord Wilson’s assessment was that the considerations of public policy finding in favour of applying the ex turpi causa defence to defeat the claim were very slight.
- Thus following the guidance given by Lord Wilson in Hounga at para. , an amalgamated approach is required. Balancing the public policy considerations which underlie the provisions of the LRA governing acquisition of title by adverse possession against the public policy considerations which underlie section 144 of LASPOA. Accordingly in this case by section 144 of LASPOA, Parliament did not intend that it should have any impact on the law of adverse possession set out in the LRA.
- The mischief which section 144 was intended to address and the objective it was intended to achieve had nothing to do with the operation of the law of adverse possession.
- The true inference is that in enacting section 144 Parliament did not intend to produce any collateral effect upon the settled law of adverse possession in respect of either registered or unregistered land.
On the true interpretation of schedule 6 of the LRA and section 144 of LASPOA, the intention of Parliament was that an application for registration of adverse possession should not be barred by reliance on acts in contravention of section 144 of LASPOA.
The Court of Appeal held that the provisions of schedule 6 of the LRA must be interpreted to give effect to that intention. Section 144 and schedule 6 operate independently of each other. Parliament’s decision to enact section 144 in separate legislation reinforced the conclusion.
The subject matter is sufficient to exclude ex turpi causa in this instance the ex turpi causa principle is excluded from schedule 6 of the LRA to the extent of any criminal conduct under section 144 of LASPOA. Accordingly the Appeal was dismissed.
This case reveals a very interesting tension between two competing interests. Protection of owners of residential property in securing the removal of squatters as against a careful substantial body of law as to acquisition of title by adverse possession.
The Court of Appeal clearly had in mind that in interpreting section 144 it was clear that the provision did not intend to disturb the regimes of land registration and limitation. In essence at the heart of this case lay the application of conventional statutory interpretation.
Lord Justice Sales observed that section 144 made no reference to the adverse possession regimes for either registered land or unregistered land. Had there been any policy intention to affect either of those regimes by passing section 144, this would have been a “surprising omission”.
Crucially he observed that
“Acceptance of the Registrar’s arguments would have a profoundly disruptive effect in relation to what has been the long established effect of the law of adverse possession for the purposes of acquiring title for both registered and unregistered land. “